California Civil Jury Instructions (CACI) (2017)

1244. Affirmative Defense—Sophisticated User

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1244.Affirmative Defense—Sophisticated User
[Name of defendant] claims that [he/she/it] is not responsible for any
harm to [name of plaintiff] based on a failure to warn because [name of
plaintiff] is a sophisticated user of the [product]. To succeed on this
defense, [name of defendant] must prove that, at the time of the injury,
[name of plaintiff], because of [his/her] particular position, training,
experience, knowledge, or skill, knew or should have known of the
[product]’s risk, harm, or danger.
New October 2008; Revised December 2014
Directions for Use
Give this instruction as a defense to CACI No. 1205, Strict Liability—Failure to
Warn—Essential Factual Elements, or CACI No. 1222, Negligence—Manufacturer
or Supplier—Duty to Warn—Essential Factual Elements.
In some cases, it may be necessary to expand this instruction to state that the
plaintiff knew or should have known of the particular risk posed by the product, of
the severity of the potential consequences, and how to use the product to reduce or
avoid the risks, to the extent that information was known to the defendant. (See
Buckner v. Milwaukee Electric Tool Corp. (2013) 222 Cal.App.4th 522, 536 [166
Cal.Rptr.3d 202].)
Sources and Authority
• “A manufacturer is not liable to a sophisticated user of its product for failure to
warn of a risk, harm, or danger, if the sophisticated user knew or should have
known of that risk, harm, or danger.” (Johnson v. American Standard, Inc.
(2008) 43 Cal.4th 56, 71 [74 Cal.Rptr.3d 108, 179 P.3d 905].)
• “The sophisticated user defense exempts manufacturers from their typical
obligation to provide product users with warnings about the products’ potential
hazards. The defense is considered an exception to the manufacturer’s general
duty to warn consumers, and therefore, in most jurisdictions, if successfully
argued, acts as an affirmative defense to negate the manufacturer’s duty to
warn.” (Johnson, supra, 43 Cal.4th at p. 65, internal citation omitted.)
• “Under the sophisticated user defense, sophisticated users need not be warned
about dangers of which they are already aware or should be aware. Because
these sophisticated users are charged with knowing the particular product’s
dangers, the failure to warn about those dangers is not the legal cause of any
harm that product may cause. The rationale supporting the defense is that ‘the
failure to provide warnings about risks already known to a sophisticated
purchaser usually is not a proximate cause of harm resulting from those risks
suffered by the buyer’s employees or downstream purchasers.’ This is because
the user’s knowledge of the dangers is the equivalent of prior notice.” (Johnson,
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supra, 43 Cal.4th at p. 65, internal citations omitted.)
• “[T]he defense applies equally to strict liability and negligent failure to warn
cases. The duty to warn is measured by what is generally known or should have
been known to the class of sophisticated users, rather than by the individual
plaintiff’s subjective knowledge.” (Johnson, supra, 43 Cal.4th at pp. 65–66,
internal citations omitted.)
• “[A] manufacturer is not liable to a sophisticated user for failure to warn, even
if the failure to warn is a failure to provide a warning required by statute.”
(Johnson v. Honeywell Internat. Inc. (2009) 179 Cal.App.4th 549, 556 [101
Cal.Rptr.3d 726].)
• “The sophisticated user defense concerns warnings. Sophisticated users ‘are
charged with knowing the particular product’s dangers.’ ‘The rationale
supporting the defense is that “the failure to provide warnings about risks
already known to a sophisticated purchaser usually is not a proximate cause of
harm resulting from those risks suffered by the buyer’s employees or
downstream purchasers.” [Citation.]’ [¶] [Plaintiff]’s design defect cause of
action was not concerned with warnings. Instead, he alleged that respondents’
design of their refrigerant was defective. We see no logical reason why a
defense that is based on the need for warning should apply.” (Johnson, supra,
179 Cal.App.4th at p. 559, internal citations omitted.)
• “The relevant time for determining user sophistication for purposes of this
exception to a manufacturer’s duty to warn is when the sophisticated user is
injured and knew or should have known of the risk.” (Johnson, supra, 43
Cal.4th at p. 73.)
• “Johnson did not impute an intermediary’s knowledge to the plaintiff, or charge
him with any knowledge except that which had been made available to him
through his training and which, by reason of his profession and certification, he
should have had. In contrast, [defendant]’s proposed instruction is not based on
the theory that [plaintiff] had the opportunity to acquire any knowledge of the
dangers of asbestos, let alone the obligation to do so. Instead, it contends that
its customers . . . knew or should have known (from public sources) of the
dangers of asbestos, and that its duty to warn [plaintiff] is measured by the
knowledge [the customers] should have had. It is apparent that such a theory
has nothing to do with Johnson.” (Stewart v. Union Carbide Corp. (2010) 190
Cal.App.4th 23, 28–29 [117 Cal.Rptr.3d 791].)
• “Thus, in actions by employees or servants, the critical issue concerns their
knowledge (or potential knowledge), rather than an intermediary’s
sophistication. [¶] This conclusion flows directly from [Restatement Third of
Torts] section 388 itself. Under section 388, a supplier of a dangerous item to
users ‘directly or through a third person’ is subject to liability for a failure to
warn, when the supplier ‘has no reason to believe that those for whose use the
[item] is supplied will realize its dangerous condition.’ Accordingly, to avoid
liability, there must be some basis for the supplier to believe that the ultimate
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user knows, or should know, of the item’s hazards. In view of this requirement,
the intermediary’s sophistication is not, as matter of law, sufficient to avert
liability; there must be a sufficient reason for believing that the intermediary’s
sophistication is likely to operate to protect the user, or that the user is likely to
discover the hazards in some other manner. The fact that the user is an
employee or servant of the sophisticated intermediary cannot plausibly be
regarded as a sufficient reason, as a matter of law, to infer that the latter will
protect the former. We therefore reject [defendant]’s contention that an
intermediary’s sophistication invariably shields suppliers from liability to the
intermediary’s employees or servants.” (Pfeifer v. John Crane, Inc. (2013) 220
Cal.App.4th 1270, 1296–1297 [164 Cal.Rptr.3d 112].)
• “In order to establish the defense, a manufacturer must demonstrate that
sophisticated users of the product know what the risks are, including the degree
of danger involved (i.e., the severity of the potential injury), and how to use the
product to reduce or avoid the risks, to the extent that information is known to
the manufacturer.” (Buckner, supra, 222 Cal.App.4th at p. 536.)
• “ ‘Under the “should have known” standard there will be some users who were
actually unaware of the dangers. However, the same could be said of the
currently accepted obvious danger rule; obvious dangers are obvious to most,
but are not obvious to absolutely everyone. The obvious danger rule is an
objective test, and the courts do not inquire into the user’s subjective
knowledge in such a case. In other words, even if a user was truly unaware of a
product’s hazards, that fact is irrelevant if the danger was objectively obvious.
[Citations.] Thus, under the sophisticated user defense, the inquiry focuses on
whether the plaintiff knew, or should have known, of the particular risk of harm
from the product giving rise to the injury.’ [Citation]” (Moran v. Foster Wheeler
Energy Corp. (2016) 246 Cal.App.4th 500, 511 [200 Cal.Rptr.3d 902].)
• “[S]peculation about a risk does not give rise to constructive knowledge of a
risk under the ‘should have known’ test.” (Scott v. Ford Motor Co. (2014) 224
Cal.App.4th 1492, 1501 [169 Cal.Rptr.3d 823], original italics.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1467, 1537,
1541–1542
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict
Liability For Defective Products, ¶ 2:1277 (The Rutter Group)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§ 460.185 (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.246
(Matthew Bender)
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